On The Judicial Dilemma Of The Spousal’s Common Debt Determination And Legislative Perfection

With the development of economic,personal relations and property relations of spouses are more independent.Meanwhile,as the economic exchanges outside spouses become more frequently,the debt and debt relations have gradually increased,which lead to the increase of the number of cases of cognizance for common debt between spouses.Under what circumstances the debt for a spouse in his own name could be identified as common debt causes the controversy in judicial practice.There are a lot of public discussions on the trial results of spouses’ debt cases.Public consider the court’s cognizance on the nature of spouses’ common debt an infringement on the interest of the non-debtors,especially the interest of the female non-debtors.This judicial dilemma arouses the wide concern of legislators and scholars,they expect the introduction of a more perfect legal system,which could balance the interests of different subjects.The author reviewed the laws and the judicial interpretations about spouses’ debt cognizance in the legal system of China,and inquired related cases,then analyzed the reason for the dilemma of spouses’ debt cognizance in the judicial practice,and finally put forward practical legislative countermeasures.Subjected to the starting late compared with the western countries of the marriage inheritance law and the traditional Chinese thoughts,there are still many deficiencies in the stipulation of the property relations of spouses.Untangled the legal norm of the debt cognizance between spouses in the field of marriage and family law,it could be found that this kind of system in our country is not perfect,even contradictory in some provisions.For example,‘husband and wife living together’ and ‘duration of marriage’ are both the rules for the cognizance of spouses’ debt according to existing laws.There are a lot of deficiencies in the current legislation on matrimonial property relations,and the specific issues in the problem of the spouses’ debt cognizance are the difficulty in defining the scope of ‘husband and wife living together’,the lack of daily household agency system and protecting the interests of creditors,but ignoring the fair allocation of burden of proof.Legislation absence is the most serious reason for the judicial practice dilemma on the spouses’ debt cognizance,which should be solved by further improve the legislation.In the judicial practice,mechanical application of legislation by judge lead to the debt for a spouse in his own name identified as spouses’ common debt in most cases.To the debt in the name of debtor,non-debtor only could eliminate his obligation to pay off the debt by proving the existence of the following four situations.The situations are proving the debt is not used for the husband and wife living together,namely the non-debtor did not enjoy the relevant benefits;proving the existence of malicious collusion between the creditor and the debtor;proving the use of contractual regime between spouses,and the creditor knows about the contract;and proving the creditor and the debtor clearly agreed that the debt is an individual debt in the signing of the loan contract.It seems that a series of laws protect the interests of non-debtor,but it is usually difficult for non-debtor to provide relevant evidence,which leads to the dilemma in the trial practice of relevant cases.This paper analyzed the legal provisions about spouses’ debt cognizance ruled by the Marriage Law and its relevant explanation,and drew lessons from the foreign legislation experience.On the basis of the existing legislation,this paper proposed establishing a more perfect legal system for spouses’ debt cognizance by the following proposals.They are setting up the household agency system,setting up the large debt registration system,creating the property cognizance system of separation and cohabitation,improving the allocation of the burden of proof,and setting up the matrimonial property registration system.Considering the establishment of the new system require proper legislation and operative norm to match,these legal provisions should easily be accurately applied by the judge in the trial.The purposes of this paper by the means above are to fully protect the interests of different subjects,solve the dilemma of spouses’ debt cognizance in judicial practice,and really make the laws play a decisive role.